The Supreme Court’s Bruen decision will have a major impact across the United States. Jurisdictions will make changes to gun regulations already on the books, and lawyers will bring legal challenges to existing gun laws. Defense attorneys Zachary Newland and Catherine Turner review and explain the new standard set forth in Bruen, and they discuss how lawyers are using the new standard to challenge the constitutionality of firearm laws.

It is crucial for a defense attorney to know the background and training of the forensic nurse examiner involved in the client’s case. A forensic nurse’s initial education does not include training on how to give an expert opinion related to his or her objective findings. Through continuing education and board certification, however, it is possible for a forensic nurse to be considered an expert.

The aftermath of an accidental fire can often look the same as the aftermath of an intentionally set fire. This confounding fact has led to many false accusations. John Lentini writes that an arson determination should be viewed with great skepticism if it is based on (1) “low burning,” (2) a fire that burned “hotter than normal” or “faster than normal,” or (3) the appearance of “pour patterns” on a floor without a positive finding of an ignitable liquid in a laboratory test.

This month Gil Sapir reviews Junk Science and the American Criminal Justice System by M. Chris Fabricant.

Expert evidence is frequently exploited by prosecutors keen on securing a conviction regardless of the reliability of the expert or the expert’s methodology. Nowhere is this more prevalent than in forensic science. To combat this pervasive problem, defense lawyers need to have a thorough understanding of Federal Rule of Evidence 702 and companion rules. Rene L. Valladares and Hannah Nelson discuss the rules, summarize cases favorable to the defense, and provide useful checklists.

for Criminal Defendants

Wholesale destruction of communications evidence on agents’ cellphones and elsewhere is something that criminal defendants and their lawyers face with shocking regularity.

What are the problems with fingerprint analysis? Justin Fahringer describes a recent Daubert hearing that included testimony by latent fingerprint examiners from two law enforcement agencies. The testimony revealed that many law enforcement agencies that employ latent print examiners have struggled to evolve and have continued to utilize stale and unreliable methods.

Attorneys and courts should not simply trust that computer programs are reliable. Why should litigants have faith in evidence that purports to be accurate when the inner workings of the computer program that produced the evidence are shrouded in mystery? Source code review is necessary for a complete assessment of a program’s reliability. Tamar Lerer discusses pretrial strategies to help obtain source code when a program has not been demonstrated to be reliable.

Implicit racial bias in forensic testimony cannot be ignored as a primary driver of injustice. Janis Puracal discusses how implicit racial bias can impact forensic testimony, and she shares her family’s story.

Most types of forensics lack the statistical backing that nuclear DNA tests have. Nonetheless, the general public believes that fingerprinting, for example, is as reliable or even more reliable than DNA testing. What should be the response in the courtroom?

Richard Miletic discusses the types of data that can be extracted from a cellphone (including call history and accessed Wi-Fi networks) and from cloud accounts (including texts, emails, and location history). In addition, he lists the data stored by phone companies (location of serving cell tower and estimation of target phone location).

What are some common mistakes made by crime scene investigators during the recovery of human skeletal remains?

Law enforcement has started to use genetic genealogy websites to try to identify suspects in cold cases. How does genetic genealogy work? What should defense attorneys look for if forensic genetic genealogy is used in their cases?

This month Matthew T. Mangino reviews The Cadaver King and the Country Dentist: A True Story of Injustice in the American South by Radley Balko and Tucker Carrington.

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

Defense attorneys should not become overwhelmed by DNA evidence and believe they have no way to challenge the allegations. Counsel can demonstrate to jurors that other plausible explanations exist.

If an image of a perpetrator exists on a cellphone camera, video surveillance, body camera footage or social media, law enforcement can use facial recognition software to attempt to identify the person in the photo. Defense attorney Kaitlin Jackson discusses the limitations of facial recognition, and she explains how to determine if police used facial recognition in a defendant’s case. Facial recognition software is difficult to challenge, but ways exist to attack its reliability.

Due to the increased push for prosecutions in drug-related deaths, it is more important than ever for criminal justice system stakeholders to have access to accurate, standardized, and professional death investigation and death certification. Amy Hawes and Denise Martin share some of the common pitfalls in drug death investigations, discuss national recommendations for coroner and medical examiner investigations, and set forth the qualifications death investigation experts should possess.

Smartphones can create a detailed record of what their users have been doing. Wisconsin litigator Peyton Engel focuses on the traits smartphones have in common with general-purpose computers and the implications from a digital evidentiary perspective. He discusses retrieving evidence from smartphones, extracting information from cloud storage, finding evidence of a secret or hidden phone, wearable tech, issuing subpoenas for social media records, and using apps to collect evidence.

Probabilistic genotyping software is used when DNA evidence is a mixture of contributions from several people, when only trace amounts are collected, or when the evidence has been degraded by elements such as sunlight, moisture, and bacteria. Scientists developed probabilistic genotyping software programs to analyze these complex mixtures. Are these software programs accurate? How can lawyers challenge the admissibility of the programs under Frye and Daubert standards? When should defense counsel bring an “as-applied” challenge?

Probabilistic genotyping (PG) is a new computer technology for interpreting complicated DNA profiles. It represents a paradigm shift in the way DNA profiles are interpreted and reported. Attorneys who have specialized in DNA cases by grappling with both molecular biology and statistics will now have to learn to talk about computer science, or at least ask questions about it. They must ask how PG was used in a defendant’s case, and they must make sure that the hypotheses and assumptions run through the PG program were appropriate.

Dr. Mark Perlin reviews the history of failed DNA mixture interpretation. He begins in 1985, at the start of the genomics revolution, discussing the origins of modern DNA testing. Proceeding in five-year increments, he outlines missed opportunities and policy failures. Perlin offers recommendations to help overcome long-standing DNA interpretation problems.

Forensic software is used in the criminal justice context to make assertions about the presence and nature of DNA, to deploy police resources to certain areas, or to guide bail and sentencing determinations. Software, however, is far from impartial or infallible. The authors explain why law and public policy require disclosure to the public and independent experts of the software source code and other software development records, including training data sets.

When someone has been accused of causing the death of another person, what information should defense attorneys expect to see in an autopsy report? What is the role of a second autopsy? What are the concerns when an autopsy has been delayed? Forensic pathologists Evan Matshes and Sam Andrews answer these questions and discuss the lack of uniformity in autopsy reports.